Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) [2000] NSWIRComm 234 PROSECUTOR WorkCover Authority of New South Wales (Inspector Ronald James Keelty) PARTIES : DEFENDANT The Crown in Right of the State of New South Wales (Police Service of New South Wales) FILE NUMBER: IRC 5721 of 1997 CORAM: Hungerford J Occupational Health and Safety - Summons for production of documents and things by the defendant - Notice of motion to set aside as incompetent against the Crown - Ability of the Crown to rely on the privilege against self-incrimination and the privilege against self-exposure to a penalty - Statutory removal of such privileges as to bodies corporate - Whether the Crown a body corporate - Held, the Crown a body corporate at common law in its constitution as a corporation sole - Held, the Crown unable to rely on the said privileges - This ground of the motion dismissed - Whether otherwise the summons for production should be set aside on basis too wide, oppressive and a substitute for discovery - Whether summons should be set aside as disclosing no legitimate forensic purpose - Apparent relevance of documents and things sought - Summons set aside in part and certain variations made. Crown - Prosecution for breach of occupational health and safety legislation - Summons for production of documents and things - Reliance by Crown on privilege against self-incrimination and privilege against self-exposure to a penalty - Whether the Crown a body corporate - Held, the Crown a corporation sole and hence a body corporate - Held, the Crown unable to rely on the said privileges. CATCHWORDS : Criminal Law - Summons for production of documents and things by the defendant charged with a breach of occupational health and safety legislation - Notice of motion by defendant Crown to set aside summons - Privilege against self-incrimination and the privilege against self-exposure to a penalty - Held, the Crown a body corporate and unable to claim immunity from production - Motion on this ground dismissed. Practice and Procedure - Summons for production of documents and things by defendant Crown charged with breach of occuptional health and safety legislation - Motion to set aside - Reliance on privilege against self-incrimination and privilege against self-exposure to a penalty - Crown held to be a body corporate and unable to rely on the said privileges - Whether otherwise summons for production should be set aside as too wide, oppressive and a substitute for discovery - Whether summons disclosed a legitimate forensic purpose - Apparent relevance to issues - Summons set aside in part and partly varied. Corporations Law The s 57A s 65 s66A Evidence Act 1995 s 7 s 187 Evidence Act 1995 (Cth) s 187 Industrial Relations Act 1996 s 165(3)(c) s 404 LEGISLATION CITED : Interpretation Act 1897 s 21(c) (repealed) Interpretation Act 1987 s 4 s 21(1) Occupational Health and Safety Act 1983 s 6 s 15(1) Real Property Act 1915 (Vic) Pt II Statute of Limitations Industrial Relations Commission Rules 1996 r 94(1) Admiralty, The v Owners of the Steamship Divina (The Truculent) [1952] P 1 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 Bristol v Water Conservation and Irrigation Commission [1975] 2 NSWLR 643 Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456 Clarke v Tweed District Ambulance Committee of the Tweed District Ambulance Service [1965] AR (NSW) 8 Commissioner for Railways v Small [1938] 38 SR (NSW) 564 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Finnie v Dalglish [1982] 1 NSWLR 400 CASES CITED : Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 Maddison v Goldrick [1976] 1 NSWLR 651 Martin v Treacher (1886) 16 QBD 507 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (unreported, 10956/98 and 10969/98, Sully J, 11 May 1998) Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Saleam (1989) 16 NSWLR 14 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96, (1994) 123 ALR 503 HEARING DATES: 09/15/2000; 10/24/2000 DATE OF JUDGMENT: 11/16/2000 PROSECUTOR Mr S Crawshaw SC Solicitor: Mr G McCann WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr P S Hastings QC and Mr G J Willis of counsel Solicitor: Mr M N Holmes Police Service of New South Wales JUDGMENT: - 38 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Thursday, 16 November 2000 Matter No IRC 5721 of 1997 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RONALD JAMES KEELTY) v THE CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (POLICE SERVICE OF NEW SOUTH WALES) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT (on motion re production) [2000] NSWIRComm 234 1 This is a motion by the defendant, the Crown in right of the State of New South Wales (Police Service of New South Wales), for an order setting aside either in whole or in part a summons served on it by the prosecutor, Ronald James Keelty as an inspector of the WorkCover Authority of New South Wales, for the production of certain documents and things. The summons was issued during the preparation for hearing of a charge by the prosecutor that on 9 July 1995 at Crescent Head in the State the defendant failed to ensure the health, safety and welfare at work of all its employees, in particular Senior Constables Peter Addison and Robert Spears, by not providing a safe working environment contrary to s 15(1) of the Occupational Health and Safety Act 1983. The defendant has pleaded not guilty. 2 The notice of motion set out the grounds and reasons in support of the order sought as follows : (i) The effect of the summons is to require the Defendant to a prosecution to incriminate itself. (ii) The summons is oppressive. (iii) The summons seeks production of material for which there is no demonstrated legitimate forensic purpose. In a supporting affidavit sworn by the defendant's solicitor, Robert John Redfern, he stated certain matters of a formal nature and then deposed : 7. Instructions have now been sought to seek to set aside wholly the summons issued against the Defendant. 8. Should the primary submission be rejected, I am instructed to seek to set aside various parts of the summons issued upon the Defendant. 9. The grounds for seeking to set aside the summons are briefly set out in the Notice of Motion filed this date. 3 In view of the grounds relied upon in the motion, it is necessary to set out the recital and particulars of the charge brought against the defendant, namely : On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables, Peter Addison and Robert Spears, in failing to ( sic ) a safe working environment, for its employees that is safe and without risk to health, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted. The Particulars of the charge are: a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears; in failing to provide a working environment, for its employees that is safe and without risk to health, in that: a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears; b) failing to provide training, to wit, the content of which addressed in a practical way the tactics to be employed in high risk situations; c) failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available; d) failing to ensure that mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communication was undertaken; e) as a result of the said failures, Senior Constables Addison and Spears suffered fatal injuries. 4 It is necessary too, having in mind the issues raised by the motion, to identify the specific documents and things which the summons for production sought. They were : 1. All reports, surveys, tests conducted on the use of portable radio communication equipment in the Crescent Head, Kempsey and Port Macquarie areas from 1985 to 1999 inclusive. 2. All reports, surveys, tests conducted on the use of radio communication equipment in police vehicles used in the Crescent Head, Kempsey and Port Macquarie areas between 1985 and 1999 inclusive. 3. The policy, procedure or directions, for conducting surveys or tests on the police radio communications network in the Kempsey, Crescent Head and Port Macquarie areas of New South Wales from 1985 to 1999 inclusive. 4. Procedures documentation for the use of portable radio communication equipment to be used by police in undertaking their police duties from 1990 to 1999 inclusive. 5. The maintenance procedures for maintaining portable radio communication equipment for the use of police from 1990 - 1999 inclusive. 6. All records of maintenance undertaken for portable radio communication equipment and batteries for the same equipment used at Kempsey Police station from 1990 - 1999. 7. The manufacturers details for the recommended maintenance of portable radio communication equipment and batteries for portable radios and batteries used by police from the Kempsey Police Station from 1990 - 1999 inclusive. 8. Details of changes undertaken to the police radio communications network for the radio network covering the Kempsey, Crescent Head and Port Macquarie areas from 1990 - 1999 inclusive. 9. Any policy, procedure or direction for the procedures to ensure that police being transferred from one location to another, have been given the annual training in handling of firearms and in the use of police radio communication equipment before being placed on duty at the new transferred location. 10. The directions provided to police for training to be given to police in the areas of the use of firearms and radio communication equipment for period 1990 to 1999 inclusive. 11. Training manuals provided for the use in the training of police in the use of firearms, torches, arresting persons and attending high risk situations for the period 1990 to 1999 inclusive. 12. The assessment results for the training provided to Senior Constables Addison and Spears including the live fire training results of the period 1990 to 1995 inclusive. 13. The duty statements and job descriptions for Senior Constable ( sic ) Addison and Spears for the period 1990 to 1995 inclusive. 14. The current portable radio communication equipment, torch, and firearms weapon that is provided to police for use in undertaking their duties for the year 2000. 15. The Brief of Evidence prepared for the Coronial Inquest into the deaths of Senior Constables Addison and Spears and the death of McGowan, including all statements, electronic exhibits including videos and tapes, maps, charts and photographs. 16. All documents collected, created and seized during the investigation into the deaths of Senior Constables Addison and Spears and the death of McGowan including electronic documents. 5 Section 165(3)(c) of the Industrial Relations Act 1996 enables a summons to be issued by the Industrial Registrar requiring a person to "attend and produce documents or other things"; that was done and the summons was served on the defendant on 18 August 2000 returnable before the Court on 28 August 2000. On the return date, and by consent, the prosecutor's call for the documents and things was deferred until 8 September 2000 to allow instructions to be taken by the defendant's solicitor with respect to any objection to the summons - r 94(1) of the Industrial Relations Commission Rules 1996 enables the Court to "set aside wholly or in part a summons issued at the request of a party". On 8 September 2000, the present motion was filed and the hearing of it took place on 15 September 2000. 6 During the hearing it transpired that certain documents may not be challenged as to their production so that the parties wished to confer. Leave was given for the parties to advise in writing the outcome of their discussions and also for the defendant to file any written submissions in reply on the substantive questions within two weeks, subject to which the decision was reserved. The defendant's further written submissions were filed on 24 October 2000. However, no advice has been received as to the outcome of the parties' discussions concerning documents which may be excluded from the defendant's challenge. I therefore proceed to determine the motion on the basis of the documents originally sought and the arguments in relation to them. 7 At the outset, it should be observed that some of the categories of document sought may seem somewhat removed or remote from the precise particulars given of the offence charged which, essentially, concerns various alleged failures in the training of police officers. The reason for that no doubt was that there are nine other charges against the defendant arising out of the incident at Crescent Head on 9 July 1995 and some of the documents sought here would be more applicable to one or more of those other charges. As senior counsel for the prosecutor put when this aspect was raised during the hearing, "I think it is one matter but we assume it (the summons to produce) [applies] to all matters. … I suppose the summons should have been served in all matters, but I suppose we rather took a test case type approach as well". Senior counsel for the defendant confirmed that it had "only been served with one summons, so we have only sought to set aside one summons". In the circumstances, the only proper way to proceed, I think, and even though in the substantive proceedings all ten matters are to be heard together, is to view the documents as relating to this present single matter to be considered in light of the charge made based on the particulars given. If it were otherwise then the issues would be all too general and very possibly undirected to a relevant particular. In any case, and to the extent it may be necessary, further summonses to produce may be issued with respect to the other nine matters as the prosecutor sees fit. 8 The primary ground on which the summons to produce was resisted was that it effectively required the defendant to incriminate itself. Mr P S Hastings QC, who appeared with Mr G J Willis of counsel for the defendant, developed this ground based on the dual immunities of the privilege against self-incrimination and the like privilege against self-exposure to a penalty. Reference was made to Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 and to Martin v Treacher (1886) 16 QBD 507. Senior counsel acknowledged that the prosecutor argued that as the defendant was a corporation then by reason of s 187 of the Evidence Act 1995 it was not entitled to refuse production on either limb of the privilege. On the other hand, the defendant, submitted Mr Hastings , was a "body politic" as distinct from a "body corporate" and, therefore, was entitled to claim the privilege. It did so claim; the summons for production should be set aside in whole. In the alternative, it was submitted that the summons was too wide and oppressive so as to be a substitute for discovery: see Commissioner for Railways v Small [1938] 38 SR (NSW) 564 at p 573. Further, Mr Hastings put that the prosecutor had not demonstrated a legitimate forensic purpose for the material sought so that the summons should be set aside: see R v Saleam (1989) 16 NSWLR 14 at p 18 and Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at p 681. As to the oppressive nature of the summons, senior counsel developed his argument by reference to the particular documents sought based on the following facts : (a) Paragraphs 1-3 require the production of documents from 1985 to 1999 inclusive. (b) Paragraphs 2-8 and 10-13 require documentation for the period 1990 to 1995 inclusive. (c) Paragraph 9 does not specify any period for documentation required. (d) Paragraphs 4 and 5 require documentation for radio communication equipment by police generally, which covers a range of equipment, some of which was not used at Crescent Head. (e) In relation to paragraph 14 the Police Service utilises a diverse range of portable radio equipment in relation to various functions within various areas of New South Wales, some of which is not in use in Crescent Head. (f) Paragraph 16 is a fishing expedition. 9 Senior counsel for the prosecutor, Mr S Crawshaw SC, put the basic proposition that the defendant was a corporation sole and hence a body corporate: see Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 at pp 122-123 and cases cited therein. Even if the defendant was not a corporation so as to make s 187 of the Evidence Act inapplicable, the reasons for denying to a corporation the privileges against self-incrimination and exposure to a penalty, as outlined by Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining (178 CLR at pp 489-490, 498-505), were equally applicable to the defendant having in mind its nature and structure: see also Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at p 346 per Murphy J where his Honour observed that "the history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities". The prosecutor accepted the contention that a summons should necessarily state with reasonable particularity the documents which were sought to be produced and that it will be set aside as abusive if great numbers of documents be called for which were not sufficiently relevant. Here, however, the documents were sufficiently stated so as to meet the test laid down in that respect in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at pp 720-721. The defendant's argument that the documents sought did not demonstrate any legitimate forensic purpose was, as Mr Crawshaw submitted, not established because it was at least "on the cards" that such documents would assist the prosecution's case: see Attorney-General v Stuart (34 NSWLR at p 681). 10 In the course of argument, both Mr Hastings and Mr Crawshaw analysed Environment Protection Authority v Caltex Refining by reference to the various views expressed in the separate judgments as to the application to a corporation of both types of privilege against the obligation to positively answer a summons to produce documents. It is unnecessary, in the view I take, to review those analyses prior to a determination as to whether the defendant is a corporation and so affected by s 187 of the Evidence Act . That section states : 187 No privilege against self-incrimination for bodies corporate (1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to: (a) answer a question or give information, or (b) produce a document or any other thing, or (c) do any other act whatever. (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty. 11 However, it should immediately be noted that the present proceedings are criminal in nature and are not concerned with the imposition of a civil penalty. As such, it seems to me, the only relevant immunity would be that against self-incrimination because the privilege against self-exposure to a penalty relates to a civil penalty. Although there is a similarity of character between the two types of privilege, indeed many authorities join them into a single principle based on the traditional concept of "the right to silence", the distinction may be important in some cases but it should not detain consideration of the present case. The distinction was explained by Mason ACJ, Wilson and Dawson JJ in Pyneboard v Trade Practices Commission (152 CLR at pp 336-337) and referred to by Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining (178 CLR at pp 504-505). Suffice it to say that that latter case concerned a criminal prosecution for breach of a statutory provision where the majority of Mason CJ, Brennan, Toohey and McHugh JJ ( Deane, Dawson and Gaudron JJ dissenting) held that the privilege against self-incrimination did not apply to corporations; however, Brennan J was alone in holding (178 CLR at p 521) that the defendant corporation there was entitled to rely on the privilege against self-exposure to a penalty in avoiding the production of documents sought by the prosecutor but Mason CJ, Toohey and McHugh JJ considered (178 CLR at pp 505, 548) such privilege to be unavailable to a corporation. Section 187 of the Evidence Act later gave statutory force to the finding of the majority in Environment Protection Authority v Caltex Refining and, to the extent there may have been uncertainty, removed the entitlement of a body corporate to refuse to produce documents or other things under a law of the State (such as the Industrial Relations Act and the Rules) by claiming immunity against self-exposure to a civil penalty. 12 The questions posed in this case are: first, is the Crown in right of the State a body corporate within the meaning of s 187 so as to be amenable to a summons for production of documents in a criminal proceeding against it by being unable to claim the privilege against self-incrimination; and, second, if the Crown is not a body corporate is it nonetheless able to claim such privilege according to the common law principle. 13 The second question will require attention, as Mr Hastings put his argument, to the decision of the Full Court of the Federal Court in Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96; (1994) 123 ALR 503 where it was held (by Black CJ, Davies, Burchett and Gummow JJ, Sheppard J dissenting) that the privilege against self-exposure to a civil penalty was not available to a corporation and to the decision of Gray J in Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456 where the privileges against self-incrimination and self-exposure to a penalty were held to have been abolished in respect of corporations, if not by s 187 of the Evidence Act 1995 (Cth), by the combined authority of Environment Protection Authority v Caltex Refining and Trade Practices Commission v Abbco Ice Works . The pith of Mr Hastings' submission was that the two Federal Court decisions misinterpreted the views of the High Court in Environment Protection Authority v Caltex Refining and, so, should not be followed; in any event, the defendant here was a body politic and not a body corporate so as to avoid the impact of s 187. The view of the High Court in removing the self-incrimination privilege from corporations was based largely upon the relationship between the State and corporations, including the nature of corporate activities, whereas entirely different considerations applied to government where there was a background of political accountability. 14 For his part, Mr Crawshaw submitted that the Crown was in a similar position to a corporation in terms of resources and complexity of structure and, even in the absence of s 187, the suggestion that the Crown should be afforded human rights to achieve a correct balance in its dealings was misconceived having in mind the approach of Murphy J in Pyneboard v Trade Practices Commission (152 CLR at p 346) that the privilege was personal so as not to extend to artificial persons such as corporations or political entities. 15 The nature of a corporation and its essential attributes have been the subject of much attention over the centuries. In Halsbury's Laws of England (4th ed, 1974, vol 9, Ch 1(1)) the definitions and characteristics of corporations were detailed. After stating that "a corporation may be defined as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognised by the law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question" (para 1201), the learned editors identified two main classes of corporation, namely, "corporations aggregate and corporations sole" (para 1202). As to corporations sole, Halsbury then states : 1206. Definition, capacity and presumption of due appointment. A corporation sole is a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alienate) real property, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented. Unlike a corporation aggregate, a corporation sole has a double capacity, namely, its corporate capacity and its natural or individual capacity; so that a conveyance to a corporation sole may be in either capacity. A corporation sole appears now to be capable of taking personalty in succession. The occupant of a corporation sole is presumed to have been duly in possession of his office until the contrary is proved. … 1207. Examples of corporations sole. Corporations sole were originally ecclesiastical for the most part, but they have never been confined to that class, and today there are many examples of lay corporations sole. The Sovereign is a corporation sole (1 Bl Com 457; Co Litt 15b, n 4), and many ministers of the Crown and government officers have been created corporations sole by name, with perpetual succession and a common seal, and now, generally speaking, may sue or be sued like any other corporation sole; in some cases the creation is expressed to be for all purposes, while in others the purposes are defined by statute. The Public Trustee is a corporation sole. An archbishop, a bishop, a prebendary or canon, a dean, an archdeacon, a rector (or parson), a vicar, and a vicar choral are each a corporation sole. On the augmentation of a church, curacy or chapel by Queen Anne's Bounty, its minister became a corporation sole. … (footnotes omitted) 16 It will be apparent that some corporations, either aggregate or sole, have as their nature and purpose by the statute creating them the function to act on behalf of the Crown in performing their duties. The very many statutes in New South Wales, for instance, constituting bodies to perform public duties are demonstrable evidence to that effect. As Halsbury remarks (at para 1210), "the question whether a corporation is a servant or agent of the Crown depends on the degree of control which the Crown, through its ministers, can exercise over it in the performance of its duties: see Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 at 616". Whilst the question whether a corporation is a servant or agent of the Crown may be of importance in considering the entitlement of that corporation to Crown immunities and privileges that leads to issues not presently relevant. However, the fact that the Crown itself is comprised of corporations created by it, either by statute or letters patent, speaks much of the nature of the Crown as a corporation itself. After all, it would be difficult to view the corporate constituents which make up the Crown in its entirety as separate and distinct from the Crown itself so that, it seems to me, it is only apt to similarly describe the Crown as a corporation as the fundamental source of authority. Of course, that source may be from the dual capacity of the Crown as meaning, first, the Sovereign (the King or Queen) and, second, the Government (of New South Wales). That is entirely consistent with the capacity of a corporation sole as described in Halsbury (at para 1206) as "a double capacity, namely, its corporate capacity and its natural or individual capacity". And, as was said in Halsbury (4th ed, 1974, vol 8, para 877) : 877. Attributes of the Sovereign. The special privileges and prerogatives allowed by the law to the Sovereign are attributed to her primarily in her regal capacity or body politic. But it appears that, in general, such privileges and prerogatives attach to the Sovereign also in her natural capacity, the greater drawing to itself the less, and imbuing it, as it were, with its qualities. Thus in law the Sovereign is never a minor, although regents are usually appointed when the Sovereign is of tender years; and grants and leases made by the Sovereign during minority are valid and cannot afterwards be avoided. In legal contemplation the Sovereign never dies, and the mention of the Sovereign in statutes includes successors. Allegiance is, moreover, due to the Sovereign in her natural body as in her political capacity, but it seems that in questions relating to rights of property, where the Sovereign takes in her natural capacity under a gift from a subject, the full prerogative rights do not in all cases apply. (footnotes omitted) 17 Further, the concept of the constituent parts of a corporation sole as supporting the proposition that the Crown itself is a corporation was reasoned by Professor F W Maitland in Selected Essays (1936, Books for Libraries Press, Inc) where, in the chapter entitled "The Corporation Sole", the learned author quoted Fineux CJ and commented thereon (at pp 79-81) : "… Therefore let us see what a corporation is and what kinds of corporations there are. A corporation is an aggregation of head and body: not a head by itself, nor a body by itself; and it must be consonant to reason, for otherwise it is worth nought. For albeit the king desires to make a corporation of J.S., that is not good, for common reason tells us that it is not a permanent thing and cannot have successors" (14 Hen VIII, f 3 (Mich pl 2)). The Chief Justice goes on to speak of the Parliament of King, Lords, and Commons as a corporation by the common law. He seems to find the essence of corporateness in the permanent existence of the organized group, the "body" of "members", which remains the same body though its particles change, and he denies that this phenomenon can exist where only one man is concerned. … … If now we turn from the phrase to the legal phenomena which it is supposed to describe, we must look for them in the ecclesiastical sphere. Coke knew two corporations sole that were not ecclesiastical, and I cannot find that he knew more. They were a strange pair: the king ( Sutton's Hospital Case (1612), 10 Rep 29b) and the chamberlain of the city of London ( Fulwood's Case (1591), 4 Rep 65a). As to the civic officer, a case from 1468 shows us a chamberlain suing on a bond given to a previous chamberlain "and his successors". The lawyers who take part in the argument say nothing of any corporation sole, and seem to think that obligations could be created in favour of the Treasurer of England and his successors or the Chief Justice and his successors (8 Edw IV, f 18 (Mich pl 29)). As to the king, I strongly suspect that Coke himself was living when men first called the king a corporation sole, though many had called him the head of a corporation. But of this at another time. The centre of sole corporateness, if we may so speak, obviously lies among ecclesiastical institutions. If there are any, there are thousands of corporations sole within the province of church property law. 18 Of interest, and with importance for a determination of the present issue, Maitland furthered his consideration of the corporation sole in the chapter in Selected Essays entitled "The Crown as Corporation", where he opened (at p 104) by citing what Sir Frederick Pollock said in his First Book of Jurisprudence (at p 113) that "the greatest of artificial persons, politically speaking, is the State. … In England we now say that the Crown is a corporation …". Then, by reference to the political organisation of each one of the United States but with direct reference also to New South Wales as part of the Commonwealth of Australia, the learned author said (at pp 123-124) : We are not surprised when we read the following passage in an American treatise: "Each one of the United States in its organized political capacity, although it is not in the proper use of the term a corporation, yet it has many of the essential faculties of a corporation, a distinct name, indefinite succession, private rights, power to sue, and the like. Corporations, however, as the term is used in our jurisprudence, do not include States, but only derivative creations, owing their existence and powers to the State, acting through its legislative department. Like corporations, however, a State, as it can make contracts and suffer wrongs, so it may, for this reason and without express provision, maintain in its corporate name actions to enforce its rights and redress its injuries." (Dillon, Municipal Corporations, ed 4, para 31) There are some phrases in this passage which imply a disputable theory. However, the main point is that the American State is, to say the least, very like a corporation: it has private rights, power to sue and the like. This seems to me the result to which English law would naturally have come, had not that foolish parson led it astray. There is nothing in this idea that is incompatible with hereditary kingship. "The king and his subjects together compose the corporation, and he is incorporated with them and they with him, and he is the head and they are the members." ( Willion v Berkley (1559) Plowden, p 234) There is no cause for despair when "the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland". We may miss the old words that were used of Connecticut and Rhode Island: "one body corporate and politic in fact and name"; but "united in a Federal Commonwealth under the name of the Commonwealth of Australia" seems amply to fill their place (63 & 64 Vict c 12). And a body politic may be a member of another body politic. 19 From that historical perspective, one may move to the meaning of the Crown as it presently is understood by reference to Professor Peter W Hogg in his treatise on Liability of the Crown (2nd ed, 1989, Law Book Co) where (at p 9) the learned author defined the term "the Crown" by reference to the executive branch of government, the structure of which was "accurately and commonly described as 'the government' or 'the administration' or 'the executive', but lawyers usually use the term 'the Crown'". Hogg then dealt (at pp 10-12) with the monolithic connotation of the Crown as being "one and indivisible" so that "within Australia, the federal government is the Crown in right of Australia (or the Commonwealth), and each of the state governments is the Crown in right of the state". Then, as to the corporate character of the Crown the learned author said (at pp 12-13) : Kelsen has demonstrated that the organization of the state is essentially the same as that of a corporation (Kelsen, General Theory of Law and State (1945), part I, ch 9; part II, ch 1; Kelsen, Pure Theory of Law (2nd ed, 1960), ch 6. See also N B Tennant, "Servants of the Crown" (1932) 19 Can BR 155; F W Maitland, "The Corporation Sole" and "The Crown as Corporation" in Selected Essays (1936), l73, 104). The corporation's constituting instruments provide rules which confer authority upon certain individuals - the shareholders or directors - to perform acts which the law will attribute to the corporation. Likewise, there are rules of law which confer authority upon certain individuals - usually officials of one kind or another - to perform acts which the law will attribute to the state. It follows that a state which is governed by no law at all is, as Kelsen says, unthinkable; at the very least there must be rules of law defining which acts of which individuals are to be attributed to the state (Kelsen, Pure Theory of Law (2nd ed, 1960), 312). These are the rules of constitutional and administrative law. But every modern legal order also subjects the state to many rules of what may loosely be termed "private law". It is accepted that the state, which by its legislature makes statutes, may itself be bound by those statutes; and it is accepted that the state, which by its courts settles disputes, may itself be bound by judicial decrees; and it is accepted that the state may be the subject of proprietary, contractual and tortious rights and duties. In short, it is accepted that the state is a legal person. Like a corporation, the Crown can only act through human servants or agents. This does not usually cause difficulty in the creation of rights and duties because the doctrines of agency and vicarious liability can be used by or against the Crown to hold it bound by the acts of its servants or agents. … Even where the law requires personal fault as a prerequisite to the creation of rights or duties the Crown is not necessarily excluded from those rights or duties. It is clear that personal fault will be attributed to a corporation if the fault is present in an official who can be regarded as the "directing mind" of the corporation. In The Truculent ([1952] P 1), this doctrine was applied to the Crown. 20 The approach of Hogg by reference to The Truculent is reflected, I think, in the decision of Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at p 451 where his Honour observed that "while the Commonwealth of Australia has been described as being akin to a 'corporation sole', it is also a term descriptive of the Crown in right of the Commonwealth." The approach as to the essential nature of the Crown as being the same as that of a corporation is reflected also in the following comments by McHugh J in Environment Protection Authority v Caltex Refining (178 CLR at p 554) : Corporate conduct is often complex. Assessment of a corporation's conduct may only be possible through an examination of its documents. This is particularly so in cases where the alleged wrong is committed as a result of the failure of a system set up by a corporation. A true understanding of the corporation's procedures is likely to be gained only through evidence from the corporation itself, particularly from its records. The difficulty in obtaining independent evidence against corporations is sometimes exacerbated by the inability to identify a victim of corporate behaviour who can testify. Often, the victim is an "amorphous entity such as a market". Furthermore, corporations are often well equipped to cover up their activities and to fund their defences. (footnotes omitted) 21 From the authorities, it clearly appears to me that the emergent opinion is that the Crown is a corporation as a corporation sole; hence, under s 187 of the Evidence Act it would be a "body corporate" so as to remove the privilege against self-incrimination. Whilst a statute, particularly in terms as affecting the immunities and privileges of the Crown, only applies to the Crown where the intention to do so appears by express words or necessary implication (see Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107), s 7 of the Evidence Act expressly provides that the statute "binds the Crown in right of New South Wales and also, so far as the legislative power of parliament permits, in all its other capacities". Likewise, the Crown is bound by the Occupational Health and Safety Act because of the provisions of s 6 thereof and s 404 of the Industrial Relations Act similarly makes that Act binding on the Crown. To complete the applicability of statute law for present purposes, s 4 of the Interpretation Act 1987 makes that Act binding on the Crown. 22 Here, of course, Mr Hastings conceded, correctly in my view, that the Crown was a body politic but then argued, in effect, that it could not be a body corporate. In other words, senior counsel's argument proceeded as if the two terms were mutually exclusive. I do not think that that is so. For instance, in drawing the distinction Mr Hastings relied upon s 21(1) of the Interpretation Act in its definition of a "person" as including "a corporation and a body corporate or politic"; thus, it was submitted, a "body corporate" in s 187 of the Evidence Act was statutorily defined as being distinct from a "body politic". Support for the distinction was drawn by senior counsel from what Isaacs J said in Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 at p 279 - "The expression 'body politic', as distinguished from 'body corporate', indicates to my mind a body created for some public purpose". That case involved an issue whether the Melbourne Harbour Trust, a statutory public corporation, was bound by the Statute of Limitations in Pt II of the Real Property Act 1915 (Vic) by being able to claim Crown privilege and immunity from suit. Isaacs J held the corporation could not claim privilege because its incorporating statute made it independent of the Crown and so was covered by the Statute of Limitations as a "person" which was defined therein as including a "body politic". In distinguishing the two types of body, his Honour did so on the basis that a body politic was "a body created for some public purpose" - to me, and having in mind the issue in that case, that says no more than that a body politic is a body corporate but one constituted for a public purpose. However, that is not to say the reverse that every body corporate is a body politic - plainly, in my view, the real distinction between the two types of bodies rests upon, and only upon, the "public purpose" requirement. That approach to the respective terms is consistent with the historical approach stated by the learned editors in Halsbury as quoted earlier herein. 23 Mr Hastings, on this aspect of the distinction between a body politic and a body corporate, helpfully referred to the judgment of Waddell J in Bristol v Water Conservation and Irrigation Commission [1975] 2 NSWLR 643 where his Honour was called upon to determine whether an unincorporated voluntary association, the Rice Growers' Association, was a body politic as referred to in s 21(c) of the then Interpretation Act , 1897 or otherwise a person for the purposes of that sub-section. In the course of reasoning, his Honour referred to and followed the decision of the Industrial Commission in Court Session in Clarke v Tweed District Ambulance Committee of the Tweed District Ambulance Service [1965] AR (NSW) 8 which held (at p 14) that an ambulance district committee was not an "employer" under the former Industrial Arbitration Act 1940 as it was not a "body politic" within the meaning of the definition of "person" in s 21 of the Interpretation Act. It seemed that a statutory body corporate was established known as the New South Wales Ambulance Transport Service Board with the power to delimit certain ambulance districts and the district committee concerned was elected by contributors to the funds of the corporate Board; the committee itself was not incorporated. Relevantly, his Honour said ([1975] 2 NSWLR at p 647) : It appears from the reasons of the Commission that the only explanation of the expression "body politic" to which it was referred was the definition of "body" in the Oxford English Dictionary. The relevant part of the definition is set out in the Commission's reasons as follows ([1965] AR (NSW) 8 at p 14): "The Oxford English Dictionary states that one of the meanings of the word 'body' is 'A corporate body, aggregate of individuals, collective mass'. In this sense it states that in law it is 'An artificial "person" created by legal authority for certain ends; a corporation; commonly a corporation aggregate, but also applied to a corporation sole. Always, with defining adj body corporate, body politic '. Illustrating that meaning the authors refer to a number of instances of user. We quote only some: Termes de la Ley , 'Bodies Politique are Bishops, Abbots, Prior, Deanes, Parsons of Churches, and such like, which have succession in one person onely': Milton Argt conc Militia 27, 'The King is a body politick, for that a body politique never dieth'; Blackstone Comm I 467. 'These artificial persons are called bodies politic, bodies corporate, or corporations'; Penny Cycl VIII 46/2, 'For the purpose of maintaining and perpetuating the uninterrupted enjoyment of certain powers, rights, property, or privileges, it has been found convenient to create a sort of artificial person, or body-politic, not liable to the ordinary casualties which affect the transmission of private rights, but capable, by its constitution, of independently continuing its own existence. This artificial person is in our law called an incorporation, corporation, or body-corporate.' The authors then go on to say 'Body politic has also the wide sense of "organized society"'. Examples of that meaning given are: Canne Necess Separ (1849) 185, 'To knit themselves together in a spiritual outward society or body politic'; C Mather Magn Chr 1 vi (1852) 82, 'With mutual consent they became a body-politick, and framed a body of necessary laws and orders'; Yeowell Anc Brit Ch viii 77, 'Associations and bodies politic within the church'. Finally the authors speak of the body politic as meaning 'the nation in its corporate character; the state'." I am quite unable to see how that decision assists Mr Hastings' proposition. Indeed, I read it to the contrary and as only supporting the view, as earlier expressed, that a body politic is a body corporate but one established for a public purpose. 24 Mr Crawshaw , on the other hand, placed considerable weight for the proposition that the Crown was a body corporate, albeit a body politic, on the decision of the Full Court of the Supreme Court of Victoria in Hubbard Association of Scientologists v Attorney-General . Mr Hastings dismissed the relevance of that decision because it did "not really add weight to the Prosecutor's claim that the defendant is a body corporate. The reference quoted by the Prosecutor could be argued as being supportive of the Defendant's contention that it is not a body corporate". The relevant extract from the decision of Gowans J, with whom Menhennitt J and Dunn J agreed, stated ([1976] VR at pp 122-123) : The nature of a corporation sole is described in the authorities referred to in the judgment of the learned Chief Justice. A convenient summary can be taken from Stephen's Commentaries On the Laws of England , 21st ed (Vol 2) pp 558-9: "Corporations may be aggregate or sole . Corporations aggregate consist of any number of persons united together into one society; such as are the mayor, aldermen, and citizens of a city, the dean and chapter of a cathedral church, and the like. Corporations sole consist of one person only and his successors; of which kind are the monarch, all bishops, all rectors or parsons, and the like. As regards a rector or parson in particular, the endowments of the living are vested in him as for a freehold estate; and this freehold, if vested in him in his natural capacity, would on his death descend to his personal representatives and not to his successor. The law, therefore, has wisely ordained that the parson, qua parson, shall never die, any more than the King, by making him and his successors a corporation, although, unlike the succession to the Crown, there may be vacancies in the chain of office between the death or resignation of one incumbent and the appointment of the next. By this means all the rights of the parsonage are preserved entire to the successor; for the present incumbent, and his predecessor who lived eight centuries ago, are in law one and the same person. And what was given to the one, qua person, was given to the other also. Similarly, the Public Trustee and the Treasury Solicitor are each a corporation sole; the legal personality of the office subsists independently of the actual official holding." At pp 560-561 it is said: "According to English law, the King's consent is absolutely necessary to the creation of any corporation. This consent of the Crown may be either implied or express; being implied, in the case of corporations which exist by force of the Common Law (such as the King himself, for he is a corporation sole), or by prescription (such as the City of Oxford, which has existed as a corporation 'time whereof the memory of man runneth not to the contrary'), and being express, when given either by Act of Parliament (of which the royal assent is a necessary ingredient) or by royal charter. Modern corporations are created by one or other of the latter methods." In Grant on Corporations (published in 1850) at p 626 it is said: "A corporation sole is a body politic, having perpetual succession, and being constituted in a single person, who, in right of some office, or function, has a capacity to take, purchase, hold, and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alien) lands, tenements, and hereditaments, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and mostly are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or no-one in existence in whom the corporation resides, and is visibly represented. … This description of corporation may be established either by prescription, or letters-patent, or, it is said, at common law, or by Act of parliament, or by custom; of all of which we shall notice instances in their proper places. Corporations sole are chiefly ecclesiastical, one or two instances only of lay corporations sole occurring in the books." Reference may also be made to Salmond on Jurisprudence , 12th ed pp 66-67: "Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. 'Persons', says Coke, 'are of two sorts, persons natural created of God, … and persons incorporate or politique created by the policy of man (and therefore they are called bodies politique), and those be of two sorts, viz, either sole, or aggregate of many.' A corporation aggregate is an incorporated group of co-existing persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that which has only one member at a time. Corporations aggregate are by far the more numerous and important. Examples are a registered company, consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for example, is said to be a corporation of this kind at common law, while the Postmaster-General, the Solicitor to the Treasury, the Secretary of State for War, the Minister of Town and Country Planning, and the Minister of Education have been endowed by statute with the same nature." And at p 68 this is said: "In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. This other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever." 25 The references by Gowans J to the various learned commentaries as to the nature of corporations, particularly the view that the Crown (the Sovereign) was a corporation sole at common law by being a body politic, were consistent with the view of the learned editors of Halsbury as I have earlier outlined. Therefore, the whole thrust and direction of opinion over very many years is towards the position taken here by Mr Crawshaw , namely, the Crown is a body corporate as being a corporation sole. 26 Finally, I should refer to a submission put by Mr Hastings that the term "body corporate" prima facie refers to an entity established pursuant to The Corporations Law in construing the meaning of the phrase "body corporate" in s 187 of the Evidence Act . I consider no warrant exists, either expressly or impliedly in that Act, to read down the phrase so as to limit it to the more restrictive corporations covered by The Corporations Law. Indeed, in my opinion, to do so would be both unreal and misleading having in mind the somewhat special and defined nature of a "corporation" covered by The Corporations Law: see s 57A thereof; and also having in mind the various bodies expressly excluded therefrom: see eg ss 65 and 66A thereof. The exclusion by s 57A(2) of "a corporation sole" from being a corporation for the purposes of The Corporations Law amply demonstrates the error in Mr Hastings' submission. I cannot accept a construction of s 187 which would exclude from its coverage of bodies corporate those very many corporations in the State constituted as corporations sole. I would include in that the Crown itself. 27 In the result, I conclude that the Crown in right of the State, the present defendant, is a body corporate for the purposes of s 187 of the Evidence Act and therefore unable to resist producing a document or any other thing on the ground that production might tend to incriminate it or make it liable to a penalty. This ground of the motion must consequently fail. 28 Even if I be wrong that the Crown is a body corporate, albeit also a body politic, and caught by s 187, I am in any event more inclined to the submissions of Mr Crawshaw rather than those of Mr Hastings that the Crown is in a similar general position to a corporation. The respective arguments of counsel and the particular authorities relied upon have been set out earlier and I do not repeat them. The effect of that view, by adopting against the Crown the common law requirement imposed on a corporation to produce documents or things even though such production may infringe the privileges against self-incrimination and self-exposure to a penalty, would also result in the inability of the defendant here to resist the summons for production. However, the conclusion I have reached otherwise that the Crown is a body corporate makes it strictly unnecessary to finally determine this further aspect. I do not propose to do so, but, as I have said, the argument that the Crown is relevantly akin to a corporation in terms of its structure and organisation makes compelling the application to the Crown of the reasoning in Environment Protection Authority v Caltex Refining as followed in Trade Practices Commission v Abbco Ice Works . That leaves for consideration the question whether the summons for production should be set aside in whole or in part on the grounds that it is too wide, oppressive, a substitute for discovery and demonstrated no legitimate forensic purpose. 29 The documents and things sought by the prosecutor to be produced by the defendant have been detailed earlier. A reading of them shows that they were certainly cast in somewhat general and wide terms, including by reference to time periods of up to 15 years both before and after the commission of the alleged offence. The result is that the process of determining the apparent relevance, not that they are relevant or admissible into evidence, of the documents to a subject matter in the proceedings is made more difficult. Nevertheless, the very width of the documents may be no more than an indication of the nature and scope of the issues to be decided. After all, as Smithers J (with whom Bowen CJ and Nimmo J agreed) commented in Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 at pp 188-189, "… a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness … The purpose of the process of subpoena is to facilitate the proper administration of justice between parties". It is timely also in this respect to repeat what was said by Moffitt P, with whom Hutley JA and Glass JA agreed, in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at p 382, as follows : It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery". 30 Another aspect of initial concern is the paucity thus far of factual material available about the issues in the case. It is in respect of those issues that the objections taken in the motion are to be determined and, in my view, it is the defendant as the moving party who has the onus to establish the grounds to set aside the summons for production: see Commissioner for Railways v Small [1938] 38 SR (NSW) 564 at p 574 and National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR at p 381. In this regard, I adopt the approach of Sully J in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (unreported, 10956/98 and 10969/98, 11 May 1998) in which his Honour, by reference to Finnie v Dalglish [1982] 1 NSWLR 400 and the relevant principles collected therein, said (at p 2) "that it is for the moving party to show cause why the challenged subpoena should be set aside. This is a matter of some practical importance in each of the present motions, because each motion is supported by only one brief affidavit". Similarly in the present case, the affidavit in support of the motion referred simply to "the grounds … briefly set out in the Notice of Motion"; those grounds were stated in terms that the summons "is oppressive" and "seeks production of material for which there is no demonstrated legitimate forensic purpose". In his submissions, Mr Hastings for the defendant, as earlier outlined, based objection to the summons essentially on the width and oppressive nature of the obligation imposed. Senior counsel made the submission also that "it is a clear indication that the prosecutor has commenced the proceedings without the necessary evidence and now looks to the defendant to provide evidence to enable it to prove the prosecutor's case" - that was said to deny any legitimate forensic purpose for the material sought. Senior counsel then refined his submission by emphasising the long time period during which the documents sought were related and, as senior counsel said : … given the breadth of the terms, the first issue arises is the prosecutor showing a legitimate forensic purpose for material as far back as 85 for example, and then of course there may be some issue, if that purpose is demonstrated, as to whether that is too wide and oppressive. As I said earlier your Honour, we would submit that what needs to be done is some specificity introduced to most of these paragraphs to relevant tests and surveys and so forth to the system in use. That seems to be the real issue I assume. Were there reports, surveys tests conducted on the use of this system in use in September 1995, it's of no utility we would suggest. And if there had been a different system in 1985, the tests were conducted on it and it was found to be faulty. I mean if it turns out that the system in 1985 was the same as that in 1995, then that would be relevant. And that of course under my suggestion, redefinition of the paragraphs, then that relevant material would be picked up because the paragraphs would refer to tests in relation to the system in use in 1995. Otherwise to express the paragraphs in those broad terms which, without evidence, obviously have the potential to sweep up documents about other systems which were no longer in use, in our submission demonstrates a fundamental flaw in the way the material is sought. I may not have specifically mentioned, paragraph 9 is another example where there is no limitation or indication of the time frame to which those documents interrelate. 31 Mr Crawshaw strongly resisted the assertion that the prosecutor had commenced the proceedings without the necessary evidence and was looking to the defendant to provide evidence to enable the prosecutor's case to be established. Senior counsel said that "the prosecution is entitled to obtain the best evidence and to obtain further evidence after the issue of the summons" and that "the prosecution is not limited to the evidence in its possession at the time when the summons was laid". Particular reliance was placed by Mr Crawshaw on the following extract from the judgment of Clarke J from Southern Pacific Hotel Services v Southern Pacific Hotel Corporation ([1984] 1 NSWLR at p 715) : The proceedings are, as I have said, practical procedures designed to ensure that the court can embark upon its endeavour to provide a just resolution of the disputes unhampered by a lack of relevant material. This does not mean that the rights of strangers or parties should not be protected so far as is not inconsistent with the public interest to which Mason J referred to in Rochfort ((1982) 57 ALJR 31 at pp 34-35) but, in my opinion, that protection can be adequately provided at the stage when the documents are produced. Finally, senior counsel relied upon the following further passage from the judgment of Clarke J (at pp 720-721) : The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. 32 Notwithstanding the generality and width of the call for the documents concerned, I am not satisfied, with some few exceptions, that the summons is so wide as to be oppressive in the sense of being uncertain. It cannot be said to offend the established principle that a subpoena is not to be used as a substitute for discovery because discovery is not available against a party in a criminal proceeding: see Maddison v Goldrick [1976] 1 NSWLR 651 at p 663 per Samuels JA and R v Saleam (16 NSWLR at p 19 per Hunt J). That is not to say, of course, that in criminal proceedings such as these that a summons for production could properly issue where the purpose was, as the authorities so say, a "fishing expedition"; the test still remains that, as Mr Hastings put, there must be a legitimate forensic purpose to obtain the documents, and, as Mr Crawshaw put, the documents must appear to be sufficiently relevant to an issue in the proceedings. In whatever way one may describe the test, it seems to me it comes down to a balancing exercise involving the nature of the documents sought in light of the apparent issues. In Attorney-General v Stuart (34 NSWLR at p 681), Hunt CJ at CL stated it this way : The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (16 NSWLR at pp 17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck. 33 In viewing the documents sought here, I do so in light of an assessment of their apparent relevance to issues in the case as those issues may be gleaned from the charge and the particulars thereof. I do so also consistent with what I would understand to be the resources of the defendant as a large organisation and, importantly, as a party and not a stranger to these proceedings it would reasonably have knowledge of the particular expressions used in describing the documents. In that latter respect, I am attracted by the following views of Smithers J in Lucas Industries v Hewitt (45 FLR at p 189) : Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one. In that case, it appears from the report that a wide range of documents was sought in general terms but limited by reference to a single subject matter; with some minor exceptions, the subpoena was allowed to stand. The circumstances of the present case are not conceptually dissimilar. 34 Therefore, I do not propose to accede to the motion to set aside the summons in whole. I turn, then, to consider each of the items contained in the schedule to the summons for production. This may conveniently be done, as did the parties in their submissions, by grouping certain of the items for joint consideration. 35 Items 1, 2 and 3: These items sought the identified documents on the use of radio communication equipment and the radio communications network not only in the Crescent Head area, where the alleged offence occurred, but also in the Kempsey and Port Macquarie areas; they also related the documents to the period from 1985 to 1999 inclusive even though the incident occurred on 9 July 1995. The main objection taken by the defendant was that they covered too wide a time span and should be limited to the actual system in use in 1995 to avoid irrelevant documents as to other systems which may have been in use earlier and later. The prosecutor pressed the call on the basis that the documents were specified with reasonable particularity as relating to an identified area where the equipment was used on 9 July 1995; also, being related to systems, systems take time to build-up and to break-down - hence the time span from 1985 to 1999, particularly having in mind a possible s 53 defence by the defendant that it was not reasonably practicable to comply with the statute or the defendant had no control over the causes of the incident and against which it was impracticable to make provision. The prosecution conceded that the documents sought were likely to be relevant to one of the other charges against the defendant concerning the failure to provide adequate radio communication equipment for operational police. The charge in the present summons related expressly to "failing to [provide] a safe working environment and one of the particulars claimed "failing to ensure that mandatory training in the use … of … communication was undertaken". Not without some hesitation, I am satisfied, but with modification, that the documents sought as to radio communication equipment and the network are marginally relevant to that particular. However, the time period is far too wide and, in any event, would catch documents relating to systems other than that used at the time of the incident. The geographical location should be restricted to that stated in the charge, that is, Crescent Head. I therefore allow these three items but vary each of them by deleting the words referring to the location and the period from 1985 to 1999 inclusive and substituting the words "relating to the system/equipment in use in 1995 in the Crescent Head area". 36 Items 4 to 8: The documents sought by these items as to the radio communication equipment and the network related to the period from 1990 to 1999; in addition, items 4 and 5 related to equipment used by police in undertaking their duties throughout the State and items 6 and 7 related to equipment used by police from the Kempsey Police Station whereas item 8 dealt with the Kempsey, Crescent Head and Port Macquarie areas. Again, the main objection taken by the defendant was the length of the time period, together with the non-limitation of the documents to the Crescent Head area. The prosecutor pressed the call, but conceded that the documents may relate to one or more of the other charges in the proceedings as to which no summons for production had yet been issued. In any case, the prosecutor put that the documents were reasonably identified and did not require the defendant to exercise fine judgments regarding their relevance; a large amount of documentation was not involved. For the reasons given as to the earlier items, I am satisfied, but only marginally so, that these items relate to the particular concerning mandatory training in the use of radio communication equipment and I will, therefore, allow them but with modifications. I vary each of the items concerned by deleting references to the geographical location and the time period from 1990 to 1999 and adding the words "in the Crescent Head area during 1995". 37 Item 9: This item concerns documents as to any policy, procedure or direction applicable to police transferred from one location to another being given annual training in the handling of firearms and in the use of radio communication equipment before performing duty at the new location. It was not limited either in time or location. Whilst the documents here may well be relevant also to other charges made, on their face they relate to a present particular, namely, "failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available". The defendant complained that the item did not specify any period for the documentation required. The prosecutor submitted that the time period should be read as 1990 to 1999; also, the documents sought were said to be relatively few in number over that period, they were specified with reasonable particularity and the defendant was not required to exercise fine judgments regarding the relevance of the documents. I accept that this item is within the particular stated. However, in light of the nature of the charge itself it should be appropriately limited both in time and location. I would allow this item subject to it being re-worded as follows - "Any policy, procedure or direction for the procedures to ensure that police being transferred during 1995 from one location to operate in the Crescent Head area have been given the annual training in handling of firearms and in the use of police radio communication equipment before being placed on duty in the Crescent Head area." 38 Items 10, 11 and 12: These items covered directions and training manuals effective over the period from 1990 to 1999, including training assessment results for the two police officers involved in the present incident for the period from 1990 to 1995, in the use of firearms, torches, radio communication equipment, the arrest of persons and attendance at high risk situations. The defendant objected to the length of the period. The prosecutor emphasised the limited nature of the documents as relating to the training to be given to police so that the documents were readily identifiable and easily collated from the training unit. The particulars of the charge to which they related were "failing to provide training, to wit, the content of which addressed in a practical way the tactics to the employed in high risk situations", "failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available" and "failing to ensure that mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communication was undertaken". Again, the documents sought may relate to certain of the other charges. In my view, and whilst the documents are relevant to the charge brought here, they should be restricted and focus upon a proper time scale. I would therefore allow items 10 and 11 but by deleting the reference to the time period and substituting the words "as in force during the year 1995 in the Crescent Head area". I would allow item 12 as covering the period from 1990 to 1995 because it is specifically directed towards the assessment results for the two officers concerned and, I think, the most recent results may only properly be seen comparably to those achieved during the previous few years. 39 Item 13: The documents sought under this item covered the duty statements and job descriptions for the two officers concerned in the July 1995 incident at Crescent Head. The defendant's objection was limited to the undue length of the period from 1990 to 1995. The prosecutor also related the documents to an alleged failure to provide adequate training systems and needs as covered by other charges against the defendant; otherwise the call was maintained as to this charge. Whilst on their face the documents may seem to be somewhat remote from the present charge, I am satisfied they reasonably relate to the particulars concerning training and the tactics to be employed in high risk situations; in any event, they provide the relevant employment context in which the two officers performed duty and in respect of which the charge concerning the working environment relates; like item 12, in assessing the position in 1995 it is necessary to view the officers' experience in the immediately preceding few years. I allow this item. 40 Item 14: This item sought the production of documents and things, namely, "the current portable radio communication equipment, torch, and firearms weapon that is provided to police for use in undertaking their duties for the year 2000". The defendant objected that the Police Service utilised a diverse range of equipment in relation to various functions and within various areas of the State, some of which is not in use in the Crescent Head area. The prosecutor claimed that being current equipment it was readily identifiable and available. It was said to be particularly relevant to the charge in another matter concerning the failure to provide adequate radio communication equipment for operational police in the Crescent Head area. It would seem that the things sought under this item are intended to be used in a comparative exercise to establish that the equipment provided to the two officers concerned in 1995 at Crescent Head was inadequate to ensure their safety - in the absence of evidence, this is speculation on my part. However, no claim was made for the production of those things which were in existence in 1995 and issued to the two officers. Also, whilst these things may well be relevant to a particular concerning the adequacy of equipment issued I do not see how they could be relevant to the particulars of the present charge which focused upon training and the monitoring and enforcement of systems. I do not consider this item discloses sufficient relevance. It should be set aside. 41 Item 15: This item sought the brief of evidence prepared for the coronial inquest into the deaths of the two officers concerned. No objection was taken to it. I would allow this item. 42 Item 16: This item seeks the production of all documents collected, created and seized during the investigation into the deaths of the two officers. The defendant claimed this was a "fishing expedition" and should not be allowed. The prosecutor pressed the call on the basis that the documents were all in one place with the brief of evidence and were readily ascertainable; also, they were obtained by the defendant as a result of the investigation into the deaths of the two officers, but, although not relevant to the brief prepared for the coroner, the documents may be relevant to this prosecution. The claim in item 16, in my view, is far too wide and is of a fishing nature. It should be set aside. 43 For the foregoing reasons, I find the summons for production of the documents and things to be competent as making the defendant Crown liable to comply as a body corporate. However, the summons should be set aside in part and certain of the items claimed should be varied in the manner I have indicated in this judgment. I make orders accordingly. The costs of the motion are reserved. I appoint 9.30 am on Monday, 27 November 2000 as the return date for the production of the documents in light of the rulings made. _______________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.